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December 10, 2009

Another thoughtful and notable district court opinion on restitution in child porn sentencing

A helpful reader sent me a copy of a new opinion from the Eastern District of Texas addressing a request for restitution in a child porn downloading case. The opinion in US v. Paroline, No. 6:08-CR-61 (E.D. Tex. Dec. 7, 2009) (available for download below), denies restitution on a causation theory as explained in its conclusion:

[T]he Court finds that Amy was harmed as a result of Paroline’s conduct and thus, is a “victim” for purposes of section 2259. However, a restitution award under section 2259 requires that the Government prove by a preponderance of the evidence the amount of the victim’s losses proximately caused by the defendant’s conduct. Having considered the parties’ oral arguments and written submissions, the Government has not met its burden of proving what losses, if any, were proximately caused by Paroline’s possession of Amy’s two pornographic images and thus, the Request for Restitution is DENIED.

The body of the Paroline opinion includes this paragraph noting the disparate treatment that this interesting issue has been given in various district courts over the last few months:

Restitution orders entered in possession cases have varied among the various district courts addressing the issue. On July 9, 2009, a district court in the Northern District of Florida entered a restitution order against a possessor criminal defendant in favor of Amy in the amount of $3,263,758. United States v. Freeman, No. 3:08-cr-22 (N.D. Fla. filed July 9, 2009). Similarly, a district court in the Southern District of Florida ordered a possessor criminal defendant to pay $3,680,153 in restitution to Amy without addressing the proximate causation issue. United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *3–4 (S.D. Fla. Sept. 2, 2009). On the other hand, a district court in the Northern District of California declined to order restitution because restitution was precluded under the defendant’s plea agreement, but noted that “a restitution order in [an end-user possession] case must be based upon the identification of a specific injury to the victim that was caused by the specific conduct of the defendant.” United States v. Simon, 2009 WL 2424673, at *7 (N.D. Cal. August 7, 2009). The Central and Eastern Districts of California have taken a different approach, seemingly adopting a set amount of restitution per defendant convicted of possession of child pornography. See United States v. Brown, No. 2:08-cr-1435 (C.D. Cal. filed Oct. 5, 2009) (awarding restitution in the amount of $5,000 to each victim); United States v. Ferenci, No. 1:08-cr- 0414, 2009 WL 2579102, at *6 (E.D. Cal. Aug. 19, 2009) (awarding restitution in the amount of $3,000 to the victim). In another case, the Government and the defendant stipulated to the amount of restitution because it was “in the best interest of justice, judicial expedience[,] and economy in resolving this novel legal issue.” United States v. Granato, No. 2:08-cr-198 (D. Nev. filed August 28, 2009). Most recently, a district court in Maine declined to order restitution finding that the Government “failed to present sufficient evidence showing a particular loss proximately caused by the offense of conviction.” United States v. Berk, — F. Supp. 2d —, No. 08-CR-212-P-S, 2009 WL 3451085, at *8 (D. Me. October 29, 2009).

Comments

Does anyone know of a study on the harm done as measured in terms of restitution in direct correlation to the sentence? In other words, what if one restitution award of for $5,000 for one defendant and that defendant is sentenced to 20 years, and another restitution award is for $1,000,000 but that defendant gets probation?

Is there a study that looks at our constitutional system in relation to our economic system and aren't these two systems the foundations of our country? If so, can some sentences be cruel and unusual (as one argument, or disproportionate as another argument) in terms of the economic system? Since interstate commerce, an economic factor, is already ingrained in the law, taking it a step further could be interesting.

Posted by: George | Dec 10, 2009 12:57:24 PM

OT, but Doug is probably interested in this: http://cbs2chicago.com/local/uic.student.deportation.2.1362339.html

Good to know that Schakowsky is keeping drunk drivers in America.

Posted by: federalist | Dec 10, 2009 2:26:57 PM

Restitution orders in these cases are really punitive damages in disguise, based on the fiction that each separate viewing re-victimizes the subject, no matter how attenuated the connection between the offender and the offended may be.

Indeed, in many possession cases it is the prosecutor who is causing the most harm, as it is the criminal case that brings to the victim's attention just how many people are looking at these photos. Of course, no one would seriously suggest making the prosecutor pay, but on a theory of proximate causation that is what you would have to do.

marc: "Restitution orders in these cases are really punitive damages in disguise, based on the fiction that each separate viewing re-victimizes the subject"

me: I would argue that it isn't necessarily a bad thing to have "punitive damages" in such cases on the theory that the distribution of images creates additional harm beyond the original creation. I've previously argued a couple of legal theories which can support nominal damages to reflect an percentage of each damages. The problem in these cases seems to be taht teh "victims" continually seek the full amont of damages. That replaces a strong case which is that some compensation should be provided to equal a percentage of the damages that the overall distribution entails or perhaps on the theory taht the perv got value out of looking at the image.

marc: "Indeed, in many possession cases it is the prosecutor who is causing the most harm, as it is the criminal case that brings to the victim's attention just how many people are looking at these photos"

me: I would find it a reasonable presumption that once images are distributed over computer networks that they would potentially reach a lot of people so that once the image is out there, one would assume that it has reached the possession of a large number of people. Realistically I see no difference between having notice of a specific perv having the image versus knowing that an unknown number of pervs having the image. Again, that ignores that there is a third option between full restitution and no restitution which is nominal damages - that would say we know that the distribution of the image creates additional harm (and if you doubt that, imagine that numerous unknown pervs are pleasuring themselves looking at your picture - that thought would totally creep me out).

marc: "Of course, no one would seriously suggest making the prosecutor pay, but on a theory of proximate causation that is what you would have to do."

that's something that I've been wondering about in re whether these are punitive damages dressed up as restitution. An award of several million dollars against an end-user seems wildly excessive in terms of actual restitution regarding the actual damage that that specific defendant's possession of the images caused.

When it's framed as a punitive damage, that at least makes more sense, but aren't punitive damages usually reserved to where conduct is willful and intentional? Given the quasi-strict liability that attaches to possession of child pornography, does it makes sense to have punitive damages in that context?

Posted by: Guy | Dec 10, 2009 7:07:06 PM

Although the courts are in many cases ordering only nominal damages in restitution, what about the the civil remedy under 18 USC 2255 available against possessors and downloaders? Under that section, the damages, if a "personal injury" can be proven, is automatically no less than $150,000. It's a very vague section of law and thus, surely subject to some heated litigation, but it seems strikingly broad.

[Writer is a recently admitted attorney]

Posted by: Ben | Jan 16, 2010 4:45:56 PM

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